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Magistrate Cannot Impose More than 12 Months Sentence for Non-Payment of Maintenance in an Application U/s 125(3) CrPC: Bombay HC

Introduction: The Bombay High Court, in a recent landmark judgment, has established crucial sentencing limits for magistrates in cases of non-payment of maintenance. The case, Vikram Ramesh Rughani vs The State of Maharashtra & Anr, Writ Petition (ST) No. 2435 of 2024, sets a clear precedent. This article provides an in-depth analysis of the judgment.

While clearly drawing the red lines for the maximum sentence that a Magistrate can impose for non-payment of maintenance, we see that the Bombay High Court in a most learned, laudable, landmark and latest judgment titled Vikram Ramesh Rughani vs The State of Maharashtra & Anr in Writ Petition (ST) No. 2435 of 2024 and cited in Neutral Citation: 2024:BHC-AS:8917 that was reserved on February 22, 2024 and then finally pronounced on February 26, 2024 has minced just no words to hold in no uncertain terms that a Magistrate cannot impose more than 12 months sentence for non-payment of maintenance in an application under Section 125(3) CrPC. We need to note here that a Magistrate had sentenced a husband to undergo simple imprisonment of 47 months for default in payment of maintenance to the wife of 47 months . In this context, it must be mentioned that the Magistrate in pursuance of this order had issued an arrest warrant against the husband under Section 125(3) of CrPC read with Section 28 of the Protection of Women from Domestic Violence Act, 2005 (D.V. Act) for recovery of interim maintenance after no payments were made. The High Court was thus required to consider the moot question as to whether the power of the Magistrate to sentence a defaulter for non-payment of maintenance granted under the D.V. proceedings was restricted to impose imprisonment for a period of 12 months under sub-section (3) of Section 125 of CrPC.

We definitely need to note that the Single Judge Bench comprising of Hon’ble Ms Justice Sharmila U Deshmukh explicitly stated that, “Plain reading of the proviso makes it evident that the proviso creates an embargo on power of Magistrate to issue warrant for recovery of amount which has become due beyond period of one year…The proviso when read with the main section makes it evident that by limiting the application for issuance of warrant to a period of 12 months, the power of the Magistrate stands restricted to impose maximum punishment of imprisonment for period 12 months.” We thus see that the Bombay High Court sets aside the order of the Magistrate in this leading case providing relief to the petitioner and the petition thus succeeded. Very rightly so!

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Ms Justice Sharmila U Deshmukh sets the ball in motion by first and foremost putting forth in para 1 that, “Rule. Learned AGP waives notice on behalf of State. Mr. Bhuvan Singh waives notice on behalf of Respondent No2. With consent of parties, the Petition is taken up forthwith for final hearing.”

While stating the purpose of the petition, the Bench discloses in para 2 that, “By this Petition challenge is to the order dated 20th January, 2024 passed by the Metropolitan Magistrate in C.C. No 96/DV/2018 sentencing the Petitioner to undergo simple imprisonment of 47 months for default in payment of maintenance of 47 months with the condition that if the Petitioner paid the amount earlier, he shall be released forthwith.”

To put things in perspective, the Bench while elaborating on facts of case envisages in para 3 that, “The facts of the case are that C.C. No. 96/DV/2018 was preferred by the Respondent No 2 wife under the provisions of Protection of Women from Domestic Violence Act, 2005 (D.V. Act.) on 18th August, 2018 seeking various reliefs under Section 18, 19, 20, 21, and 22 of the D.V. Act. By order dated 23rd September, 2019, passed under Section 23 of the D.V. Act, the Metropolitan Magistrate interalia directed the Petitioner to pay sum of Rs. 15,000/- per month as interim maintenance to the Applicant and a sum of Rs. 10,000/- per month to their daughter Mahek. By an Application dated 6th January, 2020 filed under Section 25 of the D.V. Act, the Petitioner sought modification of the interim maintenance order, which is stated to be pending. As the interim maintenance was being paid intermittently in installments, an Application for issuance of arrest warrant came to be filed by Respondent No. 1-wife on 27th July, 2023 setting out details of the part payments made on various dates from 4th December, 2019 to 10th July, 2023 amounting to Rs. 3,25,000/-. It was contended that the arrears of maintenance of 59 months aggregates to Rs. 11,50,000/- as from the date of filing of the Application the maintenance has been granted out of which only a sum of Rs. 3,25,000/- has been received. By order dated 8th November, 2023, the Metropolitan Magistrate observed that no payments were made after 10rd July, 2023 and issued arrest warrant against the Petitioner under Section 125 (3) of Cr.P.C. read with Section 28 of the D.V. Act for recovery of interim maintenance of Rs. 11,58,000/-. Subsequently, an application was filed on 16th December, 2023 by the Respondent No 2 wife for reissuing of arrest warrant. On the same date another application was filed by the Respondent No 2 wife seeking issuance of arrest warrant now contending that the arrears of maintenance is for 64 months amounting to Rs 16,00,000/ out of which only Rs 3,25,000/ has been paid. On the application seeking re-issuance of arrest warrant, arrest warrant was issued on 27th December, 2023. The arrest warrant came to be executed and the Petitioner was produced before the Metropolitan Magistrate and by order dated 20th January, 2024, the Metropolitan Magistrate noted that the Petitioner is willing to deposit Rs 1,00,000/ and he be permitted to deposit. It was held that despite deposit of Rs 1,00,000/ there are arrears of Rs 11,75,000/. Resultantly, the Petitioner was sentenced to simple imprisonment for the period of 47 months for the default in payment of arrears of maintenance of 47 months.”

As we see, the Bench points out in para 8 that, “The issue which arises for consideration in the present case is whether the power of the Magistrate to sentence a defaulter for non-payment of maintenance granted under the D.V. proceedings is restricted to impose imprisonment for period of 12 months by virtue of the proviso to sub section (3) of Section 125 of Cr.P.C. In the instant case, the Petitioner has been sentenced to imprisonment for a period of 47 months for default in payment of maintenance of 47 months.”

Do note, the Bench notes in para 11 that, “In exercise of powers conferred by Section 37 of the D.V. Act, the Central Government has framed Rules in the year 2006. Sub Rule (5) of Rule 6 of the Rules of 2006 provides that the Application under Section 12 shall be dealt with and the orders enforced in the same manner laid down under Section 125 of the Cr.P.C. If that be the position in law, while exercising the power under Section 125(3) for enforcing the orders of maintenance, the provisions of Cr.P.C governs the proceedings.”

12-Month Sentence Max for Non-Payment of Maintenance Bombay HC

Be it noted, the Bench notes in para 13 that, “Sub section 3 of Section 125 of Cr.P.C. empowers the Magistrate for every breach of the order to issue warrant for levying the amount due and for sentencing the person for the whole or any part of each months maintenance remaining unpaid to imprisonment for a term which may extend to one month or until payment if sooner made. Proviso to sub section (3) of Section 125 restricts the power of the Magistrate to issue warrant for recovery of the amount due unless application is made to the Court to levy such amount within a period of one year from the date on which it becomes due. Upon holistic reading of sub section 3 of Section 125, it is evident that the same provides for maximum imprisonment of one month for each month’s maintenance or any part thereof remaining unpaid, which application for issuance of warrant is required to be filed within a period of one year from the date it becomes due.”

Most significantly, the Bench minces absolutely no words to mandate in para 14 that, “There has been considerable debate on the proviso to sub section (3) as to whether the proviso limits the power of the Magistrate to sentence the defaulter to a term exceeding 12 months. Plain reading of the proviso makes it evident that the proviso creates an embargo on power of Magistrate to issue warrant for recovery of amount which has become due beyond period of one year. Although on first blush it appears that the proviso deals with the limitation for filing of application and bars issuance of warrant in respect of any amount unless an application is made within period of one year from the date from which the amount has become due, the proviso when read with the main section makes it evident that by limiting the application for issuance of warrant to a period of 12 months, the power of the Magistrate stands restricted to impose maximum punishment of imprisonment for period 12 months. If an application cannot be filed seeking warrant for recovery of amount remaining unpaid for period of more than one year, there is no question of imprisonment being imposed for a term exceeding one year. The period of 12 months is the outer limit.”

Equally significant is what is then postulated in para 15 that, “In this context, it will be profitable to refer to Section 29 of Cr.P.C which provides that the Court of Magistrate of First Class may pass a sentence of imprisonment for a term not exceeding three years and/or fine. Reading the provisions of Section 125(3) with Section 29 of Cr.P.C and Section 28 of D.V. Act, I am not inclined to accept the submission of learned Counsel for Respondent No. 2 wife that as the D.V proceedings provide for civil remedies, there is no restriction on sentencing powers of Metropolitan Magistrate.”

No less significant is that it is held in para 24 that, “Having regard to the discussion above, Petition succeeds and the impugned order dated 20th January, 2024 is quashed and set aside. Consequently, the Petitioner is directed to be released forthwith. It is clarified that the quashing of the impugned order does not restrict the Respondent No. 2 wife from filing fresh application for issuance of warrant for non payment of maintenance setting out the relevant details. It is open for the Respondent No. 2 wife to file separate applications for issuance of warrant subject to outer limit of 12 defaults being clubbed in one application. If such application is filed, the Metropolitan Magistrate to consider the same in accordance with the observations made herein. Rule is made absolute.”

All told, we thus see that the Bombay High Court has made it indubitably clear that a Magistrate cannot impose more than 12 months sentence for the non-payment of maintenance in an application under Section 125(3) of the CrPC. We thus see here that the petition of the petitioner succeeds. The petitioner is thus directed to be released by the Bombay High Court. Very rightly so!

Conclusion: In conclusion, the Bombay High Court’s judgment firmly establishes that a Magistrate cannot impose more than a 12-month sentence for non-payment of maintenance under Section 125(3) of the CrPC. The petitioner’s success underscores the importance of adhering to statutory limits in such cases, ensuring a balanced approach to justice. The court’s clear articulation of restrictions on sentencing powers provides a significant precedent for future cases in similar contexts.

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